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The Alberta Court of Queen’s Bench issued a remarkable privacy decision on June 30th that didn’t get much attention until David Fraser posted about it last week. (Thank you David.) Madam Justice Goss of the Court held that Alberta PIPA violates section 2(b) of the Charter because it doesn’t give organizations wide enough latitude to record and disseminate images of people at public social or political events.

Picketers often employ video cameras and still cameras, a practice thought by some to be a form of intimidation. In this case, there was evidence of a union communication that stated it would post images on a website called “www.casinoscabs.ca” and evidence that the union had used images to attack individuals in a manner described in the Alberta OPIC order under review as follows:

As well, exhibits were entered showing that images of this Complainant’s face were included (which he stated was without his consent) in issues of the Union’s newsletter or strike leaflets, in one case superimposed over the head of a person driving a miniature train, associated with text which began “There goes [the Complainant] with his train full of scabs”, and in another case, superimposed onto a turkey. In a third image, in which Complainant C is seen leaning over a railing gazing down at the floor below, the associated text begins: “What is [the Complainant] thinking? Is it jumping? …” and continues with other comments related to the strike and the Complainant’s possible thoughts.

Madam Justice Goss suggests that this activity – and “ridicule” and “mockery” in general – does not warrant constitutional protection. She nonetheless holds that PIPA is too restrictive of expression in a free and democratic society because it restricts unions from engaging in “union journalism” relating to labour disputes and picket lines. While significant, Madam Justice Goss’s finding does preserve a rather fundamental limit on the “cyber picket line” (a term used by the union’s expert): the dissemination of images to ridicule, mock and intimidate can and should be restrained by applicable privacy legislation.

Of course, the decision has implications that go beyond the picket line. At its broadest, the matter raises a rather gargantuan issue about how much government can restrict the expression of information about things people do in public as a means of promoting and protecting personal privacy.

There are numerous issues of interest that are considered in the Court’s judgement a couple of which caught my eye.

First, I was struck by the very broad interpretation given by the Court to the notion of “journalistic purposes” (an exemption that the Union was ultimately not permitted to rely upon). The Adjudicator had found (as relayed by the Court in para. 126) that journalistic purposes could include: (1) the dissemination of information to the public by the union; (2) persuasion and information-provision; and (3) levity akin to political satire. The Court went on to add the following purposes to the notion of “journalistic purposes”: (4) informing the public and picketing union members; (5) dissuading people from crossing the picket line; (6) supporting picket line morale with the use of humour; and (7) creating material for use as a training tool and related educational purposes (see paras. 129 and 130).

Second, with respect to the question of “publicly available information”, the Court ultimately refused to write in an enhanced definition. However, after noting the choice of the BC Legislature to include information collected at performances, sports meets or similar events, the Court stated that the Alberta Legislature might make a narrower choice and extend the notion only to “public political demonstrations, for example.” While the Court did not say that such a limited exemption would pass constitutional muster, it is suggested by the Court’s comments.

Thank you for posting this article on “cyber picket lines”, “union journalism” and the difficulty courts have dealing with cyber publishing, “cyber journalism” and the violations of private citizens privacy rights, identity rights, without their knowledge or consent were justified in the name of union speech. I tend to think that “corporate cyber journalism” would not enjoy the same protections? Would not a private corpration need permission of individuals to publish their names and identity on corporate websites?

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